Barr's Legal Views Come Under Fire From Conservative-Leaning Lawyers




  • In Politics
  • 2019-11-23 15:29:09Z
  • By The New York Times
Barr
Barr  

WASHINGTON - A group of conservative-leaning lawyers criticized Attorney General William Barr for the expansive view of presidential power he espoused in a recent speech and for his conclusion this spring that President Donald Trump had not obstructed justice in the Russia investigation.

"In recent months, we have become concerned by the conduct of Attorney General William Barr," the group, Checks & Balances, said in a statement that was shared Friday with The New York Times.

Members of the group have sharply denounced what they described as abuses of power by Trump, who is facing a fast-moving impeachment inquiry. The speech by Barr last week, in which he argued that the president had never overstepped his authority, so alarmed them that they felt compelled to push back publicly.

The Justice Department declined to comment.

At a conference hosted by the Federalist Society, an influential conservative legal group, Barr said in his speech that those who have sought to hem in Trump were denying the will of voters, subverting the Constitution and undermining the rule of law.

The president's opponents "essentially see themselves as engaged in a war to cripple by any means necessary a duly elected government," he said.

Checks & Balances is made up of Republican and conservative lawyers, including some who served in recent administrations. George Conway, one of Trump's most vocal critics and the husband of White House counselor Kellyanne Conway, is one of the group's most prominent members.

Barr's view on executive power is a misreading of the unitary executive theory, said Charles Fried, a Checks & Balances member and Harvard Law professor who endorsed the theory while he was solicitor general during the Reagan administration. In Fried's reading of the theory, "the executive branch cannot be broken up into fragments."

While that branch acts as a unified expression of a president's priorities, with the president firmly at the helm, "it is also clear that the executive branch is subject to law," Fried said. "Barr takes that notion and eliminates the 'under law' part."

While Barr did not use the word "impeachment" in his speech, he laid out a new defense of Trump that was taken up by Republicans on Capitol Hill. In an effort to invalidate the inquiry, lawmakers had argued that the president did not withhold a White House meeting or military aid to pressure President Volodymyr Zelenskiy of Ukraine to publicly announce investigations that would benefit Trump politically.

After a week of damaging public hearings in which multiple witnesses offered new details of the president's pressure campaign and said that he spoke openly of his desire that Ukraine publicly announce investigations, Trump's supporters began to argue that he had acted within his rights.

Trump has also begun to echo Barr's assertions. In an interview on Fox on Friday, he said that the decision to investigate his 2016 campaign's ties to Russia "was an overthrow attempt at the presidency."

Now that the claim that Trump never pressured Zelenskiy no longer holds, "the argument has got to be a 'so what' argument - Bill Barr's argument that the president did all these things, but this is what a president can do," said Stuart Gerson, a Checks & Balances member who was a senior campaign adviser to George Bush and a Justice Department official in his administration.

"The Republicans in the Senate and in the House think they're in a Parliament, and their responsibility is to a prime minister to whom they owe party loyalty," Gerson said. "That's not the American tradition. One can recognize substantial executive power, but that doesn't mean the legislative branch should be dead."

Barr has argued that his view of presidential power stems directly from the Constitution. It delineates the responsibilities of the three branches of government, he has said, rather than allowing the legislature and the judiciary to check the powers of the president as two of three coequal governing powers.

That interpretation of history "has no factual basis," Checks & Balances wrote in its statement, including the claim that "the founders shared in any respect his vision of an unchecked president, and his assertion that this view was dominant until it came under attack from courts and Congress a few decades ago."

The group said that the "only imaginable basis" for Barr's conclusion that Trump did not obstruct the Russia investigation "was his legal view that the president is given total control over all investigations by the Constitution."

Fried suggested that Barr's interpretation of the law set a dangerous precedent. "Conservatism is respect for the rule of law. It is respect for tradition," he said. "The people who claim they're conservatives today are demanding loyalty to this completely lawless, ignorant, foul-mouthed president."

Gerson echoed that sentiment. "It's important for conservatives to speak up," he said. "This administration is anything but conservative."

This article originally appeared in The New York Times.

© 2019 The New York Times Company

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